Appellants-defendants appeal from the entry of a summary judgment in favor of Appellee-plaintiff holding that he is the fee simple owner of certain lands and that Appellants had no right of renewal of a lease.
The sole point on appeal stated by Appellants is: Is a lease valid and enforceable for perpetual renewals when it provides in clear and unambiguous language that the lessees are granted the option of renewing the lease every five years commencing on a specific date?
On January 29, 1955, Appellants entered into a lease agreement with one Lettie Bullard, the owner of certain property, which provided inter alia:
Lettie Bullard died and the subject property was conveyed by her executor and heirs to the Appellee-plaintiff on June 6, 1957, subject to the unrecorded lease of Appellants.
Appellee Knabb in June of 1966 filed an ejectment suit to oust Appellants of possession. Appellants answered alleging that they were in lawful possession and had tendered the rents payable to Knabb, who had refused same. Knabb thereupon filed his motion for summary judgment which was accompanied by his affidavit stating Appellants had on or before January 28, 1960, tried to pay him the sum of $375.00 to exercise an option of renewal for a five-year
Summary judgment was rendered by the trial judge who found that Appellants had the right of renewal of the lease agreement for the period of five years commencing January 29, 1960, and that on January 29, 1965, Appellee was vested with fee simple title and entitled to immediate possession.
As stated at the outset the basic question is whether the language of this instrument is sufficient to create a perpetual lease. The trial judge found that it did not and we agree. Both parties conceded that no controlling Florida decision has been rendered on this subject. We are confronted with two general principles of law. The Appellants cite and contend for the following rule as stated in Thompson on Real Property, Vol. 3, Sec. 1088, p. 313:
Appellee relies heavily upon dicta quoted from the opinion of the Florida Supreme Court in Sisco v. Rotenberg, 104 So.2d 365 (Fla. 1958), when on page 368 it was stated:
One of the authorities cited in such dicta, 31 A.L.R.2d 607, at page 610, makes the following statement:
So, what we are ultimately concerned with is the question of whether the words "the term of Five (5) years, with option of renewal every five years" constitute an expression so clear that it unequivocally grants to the lessee the right of perpetual renewals. We have no testimony before us in this case other than the deposition of the lessor, a summary of which is set out in the first part of this opinion. We do have a photostatic copy of the original lease instrument that reflects a printed lease form which is a maize of strikeovers and interlineations, some of which are superimposed on printed matter
Having read the loosely-prepared instrument, we are immediately confronted with the fact that if the parties intended the instrument to provide for perpetual renewals at a fixed rental and such was clearly expressed therein, this provision could prevent a prospective purchaser from ever having the right of possession or from increasing rents in time of inflation and so diminish the possibility of sale to the extent as to render unnecessary a provision in the lease for purchase by the lessee at the price fixed by a bona fide offer. The parties apparently contemplated a sale. Furthermore, the instrument only specified the manner and times of paying the rent for the first five years. The lease failed to specify when the rent would be due and payable during any renewal period and the printed portion of the form providing for the time of payment was crossed out. Construing all the provisions of the instrument together, we cannot and do not find such clear and unequivocal expression within the terms of the lease of this instrument as to constitute a right of perpetual renewal.
It is our judgment that the Appellants' cited statement from Thompson on Real Property, supra, viz.: "* * * leases in perpetuity are not favored and will not be constructed so as to give them this effect unless the intention is expressed in unequivocal terms" is here applicable in that the subject lease does not express in such unequivocal terms a provision for perpetual renewal.
WIGGINTON, Chief Judge, and SPECTOR, J., concur.